Congress Can Ban Machine Guns

Well, I want to introduce this topic by saying that if you cannot own a machine gun, you are not at liberty. Liberty is not the ability to own firearms on a select list provided by the government and noticeably less effective than what the government itself would use against you. In addition, once one recognizes and accepts the principle that a rifle (or pistol caliber firearm) capable of fully automatic fire may be banned, there is no principled argument for claiming that a semiautomatic version of the very same rifle may not be banned. And so it goes.

With that having been said, some of you may recall that the very liberal Ninth Circuit Court of appeals, which sits over the western portion of the United States (I think it is the largest geographic area of the circuits) and is based in San Francisco, ruled back in 2003 that Congress could not ban machine guns made at home with no intent to sell. The reasoning was that the interstate commerce clause granted Congress no power over a purely intrastate activity.

As I argued before, Raich, which most of you would recognize as the "medical marijuana case," put a stake into the heart of any pretense that our federal government is one of limited powers. Quoting inaccurately from Justice Thomas' dissent, the majority opinion in Raich holds that even quilting bees and pot luck dinners may be the subject of federal regulation. There is almost nothing out of the reach of federal regulators.

Now, Raich has made itself felt on the issue of machine guns.

A recent Supreme Court ruling that Congress can ban homegrown marijuana for medical use in California led Friday to the reinstatement of an Arizona man's overturned conviction for having homemade machine guns.

Well now, let us see, in the 1700s, the Commerce Clause gave Congress the power to regulate interstate commerce to keep states from setting up barriers to trade. Later, realizing that this interpretation helped capitalism and stood in the way of socialist reforms, the interpretation of this provision was changed to allow regulation of anything that has a "substantial effect" on interstate commerce.

NOW we are told that the test is anything that might at some point in the future hypothetically affect interstate commerce if somehow it gets loose and into the market . . .

Apparently, all a government lawyer has to do to satisfy this scenario is construct a make believe hypothetical in which the actor does, in fact engage in interstate commerce.

"But I did not and I don't intend to!" protests the defendant.

"Yes, your honor," responds the government lawyer, "it is true that he has not and that the government has no evidence of intent. But is it not true that he might sell the guns? I realize the possiblity is remote, but these guns might bleed into the interstate market, and, if they do, there is no telling what affect they may have on supply and demand."

Please post your thoughts on Friday's ruling. Remember, this was done at the request of the Supreme Court, so I think they have signalled quite clearly where they stand on this issue.

In fairness, this was before Justice Alito was confirmed.

It may be seven decades before this question is reassessed.

Do you think the American public (and lawyers and judges are drawn from the public at large) will be more or less accepting of machine guns after 140 years of burdensome restrictions, taxes, registration, and outright bans of models manufactured after a date that is already twenty years old.

I agree with the defendant's lawyer, that the decision is consistent with Raich and further appeal is not worthwhile. The New Deal turned the commerce clause into an "anything goes" clause. As long as congress words a statute correctly, it will pass commerce clause muster. The NFA must be attacked on 2nd amendment grounds. Commerce clause grounds will not cut it.

It did not help the case that the defendant evokes no sympathy. Taking a contract out on a federal judge presiding over one's case is sure to go over well with appellate courts. There are way too many gun cases with unsavory defendants. The Burns case in GA, a bit of an anomaly, is one of few cases that came out in favor of the defendant. Is it any coincidence that the gun case was the only count against Burns, that he was as GFL holder, and that he wasn't simultaneously charged with a drug offense or violent crime?

The 9th Circuit is not a great circuit to have gun cases in the first place. There's not much reason to believe that judges that think growing your own pot is okay will think that making your own machine guns is okay. Although grounded in similar constitutional principles, guns and pot have completely different constituents (but surely there must be some overlap). Look at the ACLU. They will take all manner of civil rights cases, but they won't touch a 2nd Amendment case.

The 9th Circuit is not a great circuit to have gun cases in the first place. There's not much reason to believe that judges that think growing your own pot is okay will think that making your own machine guns is okay.

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Wait a second, this is a reversal of their 2003 holding that the Commerce Clause did not permit regulation of the homemade machine gun. It was on appeal, and the Supreme Court basically told them to see the Raich opinion and reassess it.

So, your statement is not really fair. Without the Supreme Court's pressure, the earlier case would have been the law in the Ninth Circuit (as it was for almost three years).

Fisher's claim is governed by United States v. Beuckelaere, in which we specifically held that Congress had a rational basis for the passage of Â§ 922( o), and that the provision is a facially constitutional and permissible exercise of Congress's Commerce Clause authority under all three of the factors described by the Supreme Court in Lopez. 91 F.3d 781, 784-87 (6th Cir.1996). Fisher nevertheless argues that the statute is unconstitutional as applied to him because the government proved no jurisdictional nexus to interstate commerce and failed to prove that mere possession intrastate of machine guns had a substantial affect on interstate commerce. However, under the precedent of this circuit, â€œ[a]ny as-applied challenge is irrelevant since [Â§ 922( o) ] does not contain a jurisdictional element and the prosecution need not put on evidence of a particular connection with interstate commerce.â€ United States v. Riddle, 249 F.3d 529, 539 (6th Cir.2001); see also Haney, 264 F.3d at 1166 (â€œBecause Â§ 922( o) contains no jurisdictional element (such as a requirement that the possession be in or affecting interstate commerce), we treat Haney's challenge as a facial challenge.â€). Fisher's as-applied challenge, therefore, is properly treated as a facial challenge in this case, and is foreclosed by our decision in Beuckelaere.

I agree with the defendant's lawyer, that the decision is consistent with Raich and further appeal is not worthwhile. The New Deal turned the commerce clause into an "anything goes" clause. As long as congress words a statute correctly, it will pass commerce clause muster. The NFA must be attacked on 2nd amendment grounds. Commerce clause grounds will not cut it.

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This statement was intended to apply nationwide. I don't think a commerce clause argument is good in a gun case anywhere.

Whereas Lopez found Congress did not have the power to prohibit possession of all firearms within a particular intrastate locality that was unrelated to commerce, we believe that Congress has the power to regulate the traffic in machineguns introduced into the channels of commerce after 1986 by prohibiting their possession and transfer at any location because of their potentially harmful use.

This statement was intended to apply nationwide. I don't think a commerce clause argument is good in a gun case anywhere.

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You might tell this guy in Athens, Georgia. He wants to try a Second Amendment lawsuit (and Commerce Clause) to buy a brand new M4. I think he believes he has discovered somehting that nobody has ever tried before.

Not to restate the obvious, but the commerce clause is not the place to win this argument.

The commerce clause is not greater than the 2nd Amendment though. By God I hope this DC case goes the right way and an individual right is recognized (again). It'd also be nice if it went the right way all the way to the supreme court.

I'd put more stock in the current Supreme Court deciding the individual right issue the right way than a commerce clause issue. Reichsucked, but Scalia was in the majority in that case. He'd be on our side when the 2A issue came up.

I keep forgetting you are new here. Plug Rybar into the search engine on site (look at the links up above) and you will get a list of all the threads mentioning it.

This is the case from which Judge (now Justice) Alito dissented, earning him the nickname Machine Gun Sammy among his detractors. If you read his dissent, though, he does not mention the Second Amendment.

If you go back and click on The High Road link, three posts above, you will see that I have added a great deal of Second Amendment info fo rthe original poster (who is a Georgia boy).